Rosales Perez v. Hon. martin/baldwin

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JUAN ANTONIO ROSALES PEREZ and MARIA ISABEL ROSALES,
husband and wife, OLGA LIDIA ROSALES-PEREZ, Petitioners,

v.

THE HONORABLE DAVID J. MARTIN, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of NAVAJO,
Respondent Judge,

MICHAEL L. BALDWIN and DEANNA L. BALDWIN, husband and wife,
Real Party in Interest.

No. 1 CA-SA 19-0197
FILED 10-17-2019

Petition for Special Action from the Superior Court in Navajo County
No. S0900CV201800357
The Honorable David J. Martin, Judge Pro Tempore

JURISDICTION ACCEPTED, PARTIAL RELIEF GRANTED

COUNSEL

Coronado Law Firm PLLC, Lakeside
By Eduardo H. Coronado
Counsel for Petitioners

Holland Saline & Lewis, Snowflake
By Joseph E. Holland
Counsel for Real Parties In Interest
 ROSALES PEREZ v. HON MARTIN/BALDWIN
Decision of the Court

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.

S W A N N, Chief Judge:

¶1 The defendants in this civil action seek special-action relief
from orders denying their notice of change of judge as of right and their
motion for change of judge for cause. We accept jurisdiction and grant relief
in part.

FACTS AND PROCEDURAL HISTORY

¶2 The defendants, represented by the Coronado Law Firm,
moved for change of judge for cause in December 2018. Defense counsel
Eduardo H. Coronado’s affidavit stated that assigned Judge David J. Martin
was biased because he had previously represented Coronado’s ex-partner
in litigation against Coronado and because he had criticized Coronado in
the local press. The presiding judge denied the for-cause motion in
February 2019, holding that Coronado’s associate Joseph C. Finch could
represent the defendants.

¶3 The defendants next filed a notice of change of judge as of
right. Judge Martin denied the notice as untimely in March 2019.

¶4 In May 2019, the defendants moved for reconsideration of the
denial of both the for-cause motion and the of-right notice. With respect to
the for-cause motion, the defendants asserted that the basis for the motion’s
denial had to be reconsidered because Finch’s employment at the Coronado
Law Firm was soon ending. The defendants advanced no grounds for
reconsideration of the of-right notice.

¶5 The presiding judge denied the motion for reconsideration in
September 2019, reiterating the untimeliness of the of-right notice but not
specifically addressing the for-cause motion. The defendants seek special-
action relief with respect to both the of-right notice and the for-cause
motion.

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 ROSALES PEREZ v. HON MARTIN/BALDWIN
Decision of the Court

DISCUSSION

¶6 We accept special-action jurisdiction because a special action
provides the only avenue for relief from the denial of a notice of change of
judge as of right, Taliaferro v. Taliaferro, 186 Ariz. 221, 223 (1996), and any
appellate review of the denial of a notice for change of judge for cause, see
Stagecoach Trials MHC, L.L.C. v. City of Benson, 232 Ariz. 562, 568–69, ¶¶ 20–
25 (App. 2013), is not equally plain, speedy, and adequate, see Ariz. R.P.
Spec. Act. 1(a).

¶7 We deny relief with respect to the denial of the of-right notice.
Ariz. R. Civ. P. (“Rule”) 42.1(c) provides that, absent circumstances not
present here, a notice of change of judge as of right must be filed within 90
days after the movant first appears in the case. The defendants do not
dispute that their of-right notice was untimely under Rule 42.1(c).

¶8 We grant relief with respect to the denial of the for-cause
motion. A party is entitled to change of judge for cause if the party
objectively “has cause to believe and does believe that on account of the
bias, prejudice, or interest of the judge he [or she] cannot obtain a fair and
impartial trial.” A.R.S. § 12-409(A), (B)(5); Rule 42.2(e)(4). The record
before us does not reflect that the superior court applied that standard in
assessing the defendants’ motion.

¶9 If anything, the court’s ruling suggests that it did find that the
defendants reasonably believed that Judge Martin was biased against
Coronado, but that the bias would be avoided if Coronado’s associate
represented them. As a practical matter, we reject the idea that the intra-
firm delegation would effectively resolve the alleged grounds for concern.
Further, the delegation was tantamount to an order disqualifying counsel—
it first had the effect of disqualifying Coronado himself, and, when the
associate left, presumably disqualified the firm (an issue that the court
failed to address when ruling on the motion for reconsideration).
Disqualification of a party’s chosen counsel is justifiable only in extreme
circumstances, see Simms v. Rayes, 234 Ariz. 47, 50, ¶ 8 (App. 2014), and the
record before us reveals no facts to support disqualification.

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 ROSALES PEREZ v. HON MARTIN/BALDWIN
Decision of the Court

CONCLUSION

¶10 For the reasons set forth above, we vacate the denial of the
defendants’ motion for change of cause for cause and remand with
instructions that the superior court reconsider the motion under the
standards prescribed by A.R.S. § 12-409 and Rule 42.2.

AMY M. WOOD • Clerk of the Court
FILED: AA

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